Follow this link to my BLOCKBUSTER STORY of how Brett Kimberlin, a convicted terrorist and perjurer, attempted to frame me for a crime, and then got me arrested for blogging when I exposed that misconduct to the world. That sounds like an incredible claim, but I provide primary documents and video evidence proving that he did this. And if you are moved by this story to provide a little help to myself and other victims of Mr. Kimberlin’s intimidation, such as Robert Stacy McCain, you can donate at the PayPal buttons on the right. And I thank everyone who has done so, and will do so.

Monday, November 10, 2014

King v. Burwell is as Test of the Supreme Court, Not Obamacare

So King v. Burwell is going to the Supreme
Court. The news came out Friday, but I figured
I would discuss it today.

I haven’t talked
very much about the King
and Halbig
cases, partially because they came down at a time when I was too busy and
partially because the correct outcome in both cases was idiotically
obvious. Hey, dear reader, when you see
the word “state” in a federal law, what do you think that means? Well, the average layperson’s guess is pretty
much what the law says: the states. You
know, like Virginia, Maine, California, Alaska.
Those things represented by stars on the flag. The only difference between what a layperson
would guess, and what the law typically says, is that often the law defines the
District of Columbia as a “state,” and that is the case here. But here’s what it never means in Federal law:
the Federal government.

So it is
blindingly obvious that where Obamacare says that an exchange “established by
the State,” it is not referring to one set up by the Federal Government. I try to give fair weight to the merits of
the other side’s arguments. There
is none. Likewise, I tried to come up
with a way the other side could honestly believe that their side is right, but
the argument is so lacking in merit I cannot believe they all have 1) good
information and 2) having good information honestly believe what they are
saying. This is evidenced by the
prevalence of people claiming that this was a “typo.” As a dyslexic man, I am an expert in typos
and this wasn’t one of them.

Now, it is
true that where a statute is ambiguous, that the appropriate administrative agency
can fill in the blanks. Let me give you
a valid example of this. In the ADA, in
order to avoid discrimination against the disabled employers have to provide “reasonable
accommodations” to their employees’ disabilities. In turn, the ADA defines reasonable
accommodations in part as ones that do not put an “undue burden” on
employers. Folks, those quotes terms are
not easily-defined, and since one can’t easily be certain what they mean, this
gives appropriate agencies the right to define those terms.

But we aren’t
dealing with that. We are dealing with a
statute that is crystal clear. A state is
not the Federal Government.

But in the
end, the question really isn’t what Obamacare says. It is blindingly obvious what Obamacare says
to anyone who actually looks into the question for more than five minutes. The real question is whether the obvious meaning
of the law will be followed.

In other
words, King is a test for the Supreme
Court more than it is for Obamacare. Can
they follow the law as written when there is literally no wiggle room?

For
conservatives, the fear is that Chief Justice Roberts will “creatively
misinterpret” the statute as he did previously.
But there is a significant difference, between King and National
Federal of Independent Businesses v. Sebelius. In NFIB,
Roberts creatively interpreted Obamacare’s penalty to render it a tax. I have long said that I think that the
evidence that it was a penalty or a tax was correct, including the fact that a
prior draft of the law called it a tax, and that part was changed. But Roberts was invoking, in part, an old
principle of statutory interpretation: that statutes should be interpreted as
to avoid serious constitutional questions.
In other words, Roberts argument went like this:

1. Obamacare’s mandate is almost certainly
unconstitutional under the Commerce clause,

2. If the mandate was a penalty, it could only
be justified under the Commerce Clause,

3. But the mandate is not unconstitutional
as a tax,

4. Therefore we will read it as a tax as
to avoid the danger that it would be found unconstitutional as a penalty.

Like or hate
it, that is Robert’s reasoning. Roberts
also had some statutory interpretation arguments, of course, but the deciding
factor was that this would avoid striking it down that day.

I say “that
day,” because some
commentators have pointed out that by reading this as a tax and not a
penalty, they read the statute in a way to create a new constitutional problem
under the origination clause, requiring all bills raising revenue to originate in the House. So Roberts’ ruling might only delay the
inevitable striking down of the statute in its entirety.

By contrast,
the constitutionality of Obamacare is not on the line in the King case, just its effectiveness. Which means Roberts will no longer have that
reason to twist the statute like a pretzel.

Of course that
begs the question: why did Roberts twist the statute like a pretzel? I just gave you the doctrinal reason, but is
it the actual one? Of course there were wild
conspiracy theories about why he did so, and frankly my gut instinct is
that they are unfounded. But here’s a
non-conspiracy theory explanation: traditionally the Supreme Court has been
scared to limit federal power in Commerce Clause cases. Back before FDR came along they used to
strike down statute invoking the Commerce Clause all the time. They even struck down a law aimed at banning
child labor. Then FDR came into
power and started threatening the Supreme Court with a Court-packing scheme,
and suddenly the Supreme Court started upholding laws under the Commerce Clause
they never would have before. The most
infamous example was Wickard v. Filburn
where a farmer growing food for his own consumption was deemed to effect
interstate commerce because by growing his own food, he wouldn’t buy
others. Yes,
really.

So the
non-conspiratorial theory is that Roberts was worried that if he dared to
interpret it as a penalty, he would have to strike the statute down as a
violation of the Commerce Clause and that institutionally he was afraid that
Obama and the Democratic congress would throw a hissy fit and start threatening
the viability of the Supreme Court.

I don’t know
if it is the truth, but let’s suppose that it is? First, that fear has little application to
the King case, and has even less
application now given that the
Republicans took back the Senate last Tuesday.
You can’t pack the courts without the Senate’s cooperation and barring
some surprising turn of events Obama is not going to have a cooperative Senate
again while he is in office. So aside
from doctrinal reasons, there is much less of a political case for thinking
Roberts will creatively misinterpret the statute to mean something that it
doesn’t.

In other
words, the only chance the pro-Obamacare side has is politics, and it looks
much less likely that politics will help them, this time.

The most
shameful part is seeing liberals think that an outcome where the Supreme Court says
that the word “state” means “state” and not “the federal government,” would somehow
be a sign of political corruption—as if political corruption isn’t the only
chance the pro-Obamacare side has. Josh
Marshall and his Talking Points Memo seem to be leading the charge on this point:

This linked to
a piece
that says that discussed the decision to rehear Halbig in the D.C. Circuit, and
claimed that Conservatives are “working to delegitimize in advance the pending
en banc decision of the DC Circuit Court of Appeals as purely political and
without legal foundation.” Well, I fully
agree that any opinion pretending that the word “state” means the “federal
government” cannot possibly be based on a legitimate legal foundation, so what
other explanation exists? Seriously,
some things in law are normally beyond reasonable debate, andthis should have been one
of them.

It is also
worth circling back to a truly atrocious piece of guilt-by-legal-association by
Mother Jones and apparent hack Stephanie Mencimer: To
Beat Obamacare, Opponents Resurrect an Old Birther Argument. This was written before the Supreme Court decided
to hear the case and wanted to smear them for even asking. You see, in order to get a case heard by the Supreme
Court, you file what is called a petition for certiorari, which amounts to a
request to hear the case. One common
argument is that there is a conflict between circuit courts, meaning that in
different parts of the country, the same rule is being applied
differently. Since this offends the
principle of equal justice under the law, that is often seen as a good reason
to take a case.

Up until
recently those appealing the King and
Halbig cases had that in their
favor. But as mentioned above, after
winning in Halbig, the entire D.C.
Circuit decided to hear the case (en banc) and therefore there was no longer
technically a conflict in the circuits.
So, the Mother Jones piece, points out, they fell back to a much weaker
argument:

In
their petition to the Supreme Court, the King plaintiffs write, "Given the
self-evident enormous importance of the IRS Rule to the ongoing implementation
of the ACA, to the immediate economic decisions of millions of Americans and
thousands of businesses, and to the currently flowing billions of dollars in
expenditures that the D.C. Circuit ruled illegal, the need for this Court's
review is plainly and uniquely urgent."

And this,
Mother Jones, explains, makes them just like Birthers. Yes, really:

That
dire language, though, bears some resemblance to the legal rhetoric frequently
employed by some of the nation's most dogged litigators: the birthers—those
people who've spent the past six years filing lawsuits trying to prove that
President Obama is not an American citizen. In years of legal filings, they've
repeatedly begged the court to rule on Obama's "legitimacy"—even
though every lower court has rejected their claims—because, you know, if it
turns out that he's not really a citizen, that's a problem the court should fix
right away.

If
the President and Commander in Chief is ineligible for those offices, both our
civilian and military sector need to know that as soon as possible. The
President is the Commander in Chief of our military forces. Whether he is
legitimate is also vital in maintaining the proper chain of command in our
military and in giving legality to all military orders that emanate from him.

Since
the President signs all acts passed by Congress into law, it is vitally
important that the President be legitimately in power so as to give those laws
domestic and international legality.

Ian
Millhiser, a constitutional policy analyst at the Center for American Progress,
says this sort of argument is common among not just birthers, but also tax protesters
and other fringe litigants looking to kill off government programs.

Well, in fact,
this is a downright common argument made by anyone who can’t take advantage of
more compelling explanations. In fact,
it is actually written in the Supreme Court rules itself. From the Supreme Court’s own rules of court:

Review
on a writ of certiorari is not a matter of right, but of judicial discretion. A
petition for a writ of certiorari will be granted only for compelling reasons.
The following, although neither controlling nor fully measuring the Court's
discretion, indicate the character of the reasons the Court considers:

…

(c)
a state court or a United States court of appeals has decided an important
question of federal law that has not been, but should be, settled by this
Court, or has decided an important federal question in a way that conflicts
with relevant decisions of this Court.

Mother Jones
goes on to quote more from Millhiser: “The Halbig and King plaintiffs, he says,
are essentially saying, ‘Because we have created this crisis whereby filing
this lawsuit we have raised the possibility that all of this disruption has
happened, it is therefore imperative that you, Supreme Court, take this case to
end all this disruption we have created.’”

He tries to make
this sound unfair, but exactly how did they create this problem? It is the Obama administration that started
handing out tax credits based on an interpretation of the law that is not
backed up by any reasonable reading of the statute. Would Mr. Millhiser say that Oliver L. Brown “created
a disruption” when he sued on behalf of his daughter Linda in Brown v. Board of Education to seek an
equal education for his child? How about
Fred Korematsu? Was he a troublemaker
for arguing it was wrong to lock him up for being Japanese? Isn’t the actual person creating the chaos
the person disregarding the law, not the person seeking that it be upheld?

The only valid
point the article makes is that it is a legal “hail mary play.” It is undeniably that. Then again, most meritorious cases are denied
review by the Supreme Court. They have
many times more petitioners than they have room on their docket to accommodate
them. Thus if you guessed that every
single case seeking Supreme Court review would be denied, you’d almost always
be right.

Which leads me
to another point. If it was safe money
that they wouldn’t take the case, what does it mean that they did take it? If I was going to analyze it as bald
politics, I might think that Roberts and company want to strike this law down,
now that the Republicans took Congress.
But the less baldly political analysis is that they don’t want the
statute to be in effect too long, without potentially millions of tax payer
dollars being passed out, if it is in fact illegal.

But that kind
of speculation has little purchase in fact.
It’s fun to “wargame” these ideas, but they really are just educated
guesses based on almost no evidence. The
truth is it is often hard to figure out why the Supreme Court takes one case or
another. But it is interesting that the Supreme
Court did choose this unlikely case for Supreme Court review.

Still,
whatever their reason for taking the case, it is the Supreme Court whose
legitimacy that will be on trial, as much as Obamacare. And there is good reason to think for that
reason that they will make the right decision.
This becomes obvious if you “wargame” the two scenarios out for a
moment.

On one hand,
suppose that the pro-Obamacare forces win this round? Conservatives will be mad, but more
importantly they will have a point. They
will say, “how they hell can you say that an exchange established by the
Federal Government, is an exchange ‘established by the State?’” Among lawyers or laypeople it is hard to tell
them they are wrong with a straight face.

But on the
other hand, suppose that the anti-Obamacare forces win this round? Liberals will be mad, to a degree, but will
the debate be so devoid of the merits that the ordinary people won’t realize
how empty this argument is? Even the
false claim that it is a typo still puts the majority of the blame on whoever
screwed it up in the first place.

And certainly
the lawyers, present and future, will find the second outcome easier to defend
and harder to assail than the first.

So which outcome
will harm the institution of the Supreme Court more? Obviously the second scenario, which is why I
have hope the second one is the one that will happen. As I wrote in a similar, but not identical
context, discussing how Heller
decision upholding the Second Amendment protected the Supreme Court as an
institution:

people
understand that if you want to protect an institution, you have to get a large
amount of “buy in.” But conservatives
were increasingly not buying in, because they felt that the Supreme Court was
treating the constitution as a way to shove rules they didn’t want down their
throat.

So
by giving the pro-gun-rights side the majority in Heller, the Supreme Court
greatly increased its prestige among conservatives and made it easier for
conservatives to swallow liberal decisions they don’t like.

Would you
allow a person to serve as referee if they were plainly and blatantly biased
against you? Of course not, which is why
Conservatives have to win now and then, especially when the law is clear as it
is here. It would be an embarrassment to
the court, for years to come if they rule that the word “state” can include the
Federal Government (other than D.C.’s actual government) and therefore I feel
confident that they won’t interpret the statute this way.

---------------------------------------

My wife and I
have lost our jobs due to the harassment of convicted terrorist Brett
Kimberlin, including an attempt to get us killed and to frame me for a crime
carrying a sentence of up to ten years. I know that claim sounds fantastic, but if you
read starting here,
you will see absolute proof of these claims using documentary and video
evidence. If you would like to help in
the fight to hold Mr. Kimberlin accountable, please hit the donation link on
the right. And thank you.

Follow me at
Twitter @aaronworthing, mostly for
snark and site updates. And you can
purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A
Novel of Alternate, Recent History here.
And you can read a little more about my
novel, here.

---------------------------------------

Disclaimer:

I have accused
some people, particularly Brett Kimberlin, of reprehensible conduct. In some cases, the conduct is even
criminal. In all cases, the only justice
I want is through the appropriate legal process—such as the criminal justice
system. I do not want to see vigilante
violence against any person or any threat of such violence. This kind of conduct is not only morally
wrong, but it is counter-productive.

In the
particular case of Brett Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed
communication. I say this in part
because under Maryland law, that can quickly become harassment and I don’t want
that to happen to him.

And for that
matter, don’t go on his property. Don’t
sneak around and try to photograph him.
Frankly try not to even be within his field of vision. Your behavior could quickly cross the line
into harassment in that way too (not to mention trespass and other concerns).

And do not
contact his organizations, either. And
most of all, leave his family alone.

The only
exception to all that is that if you are reporting on this, there is of course
nothing wrong with contacting him for things like his official response to any
stories you might report. And even then
if he tells you to stop contacting him, obey that request. That this is a key element in making out a
harassment claim under Maryland law—that a person asks you to stop and you
refuse.

And let me say
something else. In my heart of hearts, I
don’t believe that any person supporting me has done any of the above. But if any of you have, stop it, and if you
haven’t don’t start.

About Me

Just a regular, sort of cranky moderately conservative lawyer, living in the greater Washington, D.C. and ruminating on law, life and the local spectator sport known as politics.
Btw, if you want to email me, write to edmd5.20.10 [at] gmail.com. I assume by now you understand that you are supposed to use one of those @ symbols for "[at]."